ImaginingEurope
The Governance of Migration,
Mobility and Asylum in the EU:
A Contentious Laboratory
Giulia Henry and Ferruccio Pastore*
The terms “immigrant” and “migrant” are
generally taken to refer to any kind of
movement of people which is not occasional, whatever the length, nature and
cause of that movement. Second- and
third-generation migrants are often still
perceived as migrants themselves, even
if they are born in the host country and
have no link whatsoever with the parents’
country of origin.
Conversely, in legal and institutional
terms, conceptualizations of international
migration and mobility are strictly categorized. This is even more clearly the case
for asylum, the only form of international
human movement which is covered by a
detailed set of international norms.
The management of population movements across
national borders does not represent a single and
unified regulatory field at EU level. Mobility of EU
citizens, migration of third country nationals and
asylum have long evolved as autonomous policy
areas, driven by distinct policymaking logics. This
paper briefly reconstructs the evolution of each of
these areas, with a focus on governance structures
and on core-noncore relations. We then move to
identifying two major structural transformations (the
economic crisis with its heavy polarizing effect and
the wave of political instability in the Mediterranean)
both with significant migratory repercussions which
are producing centrifugal effects on EU migration,
mobility and asylum governance. In the final section
of the paper, we draw some possible institutional and
political scenarios for each of these separated but ever
more interconnected policy fields. We end by arguing
that only by facing migratory challenges with more
resources and in a more integrated way the EU can
defuse their disruptive potential and enhance their
positive dimension.
ABSTRACT
1. A terminological preamble
* Giulia Henry works at the Italian Ministry of Labour and Social Policies and collaborates with the Forum of
International and European Research on Immigration (FIERI), Turin. Ferruccio Pastore is the director of FIERI.
With the support of
UNICREDIT SPA
EDISON SPA
THE GERMAN MARSHALL FUND OF THE UNITED STATES
SALINI SPA
ELETTRONICA SPA
No. 5 • APRIL 2014
ISSN 2283-7612
In the EU context, migration and mobility in particular are framed as distinct issues which
are dealt with in different institutional and administrative contexts and in different policy-making environments. More precisely, all forms of inter-state movement of European
citizens within the geographical space of the EU as a whole are officially labelled as “mobility”, in order to stress that they are an expression of a fundamental freedom (which is
in general not the case for “migration”). Intra-EU movements of third-country nationals
legally residing in one Member State are also defined as “mobility”, even though they
are subject to much stricter rules than those applying to EU citizens. As for movements
of third-country nationals from outside the EU, the term “mobility” is used for short-term
movements (i.e. those leading to stays in the EU which are no longer than three months),
while longer-term movements are usually classified as “migration”.
Besides these two fundamental types of movement, forced movements driven by the
search for international protection represent a third and distinct category, generally included in the “asylum” policy domain.
From a political, institutional and administrative point of view therefore, “migration”, “mobility” and “asylum” do not represent a single and unified policy field in the EU architecture.
“Migration” has traditionally been included in the Home Affairs domain, although with
growing dissatisfaction and difficulty. As a consequence, there has been increased overlap with other EU policy domains (such as labour, social issues, and external relations),
especially within the Commission.
The regulation of fully-fledged Geneva-based asylum and other forms of international
protection also falls in the broadly-defined sphere of Home Affairs (with the JHA Council,
the Commission’s DG Home Affairs and the European Parliament’s LIBE Committee being
the competent bodies of the three main institutions).
On the other hand, as “mobility” is framed as a fundamentally legitimate expression of a
freedom to move, it is consequently dealt with in the mainstream of Community and Single Market policies. The intra-EU mobility of third-country nationals (long-term residents
and high-skilled workers, for instance) represents an exception, however, as it falls within
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the domain of administrative competence of the Immigration Directorate of the Commission’s DG Home Affairs.
The fundamental distinctions between the regulatory regimes and the institutional
spheres of competence of migration, mobility and asylum are the outcome of a complex
historical and political process and, from many points of view, aptly reflect substantial
differences between these forms of mobility.
To some extent, however, such a tripartite regulatory architecture is problematic insofar
as it hampers proper consideration and treatment of overlapping situations such as the
integration of destitute intra-EU mobile persons or the management of “mixed flows” (i.e. irregular inflows from outside the EU in which asylum-seekers and other vulnerable categories
of migrants are mixed with economic migrants). It is likely that such complex situations,
which are not easily categorised within one of the three main official policy baskets, will
become more frequent in the future. The capacity of the EU to tackle such issues through
appropriate forms of interinstitutional and cross-sectorial cooperation will be crucial for
the overall effectiveness and (thus) the legitimacy of the EU in the field of human mobility
in all its forms. For this specific reason, in this paper, we deal with migration, mobility and
asylum together, giving an account of the historical and institutional peculiarities, but also
taking account, whenever relevant, of interplay and potential for cross-sectorial learning
and coordination.
Given this background, with reference to the analytical framework proposed by Tocci and
Faleg,1 we will analyse the evolution of “core-noncore” relationships in the three policy
fields of mobility, migration and asylum (MAM). For each of these policy fields, we will first
describe the evolution of its specific model of governance (Chapter 1). We will then focus
on some clearly-emerging and largely interconnected dynamics of crisis within the cores
of each of these policy fields, trying to identify the centrifugal forces which risk jeopardising integration processes beyond sectorial boundaries (Chapter 2). We will finally envisage
future scenarios which respond to different responses by various actors to the tension
between centripetal and centrifugal dynamics (Chapter 3).
1 Nathalie Tocci and Giovanni Faleg, “Towards a More United and Effective Europe: A Framework for Analysis”, in Imagining Europe, No. 1 (October 2013), http://www.iai.it/content.asp?langid=2&contentid=992.
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2. The evolution of the “core-noncore relationships” in
the MAM policy fields
With reference to the theoretical framework outlined in the background paper,2 we will
try to describe the complex process of “core building” and “core expansion” of groups
of EU Member States in relation to the three policy fields of mobility, migration and asylum. Illustrating the integration processes in these policy areas, we will identify the initial
members, institutional nature (community or intergovernmental) and main phases of expansion of the core of each sector. Mobility, migration and asylum policies have followed
intrinsically different criteria of expansion of the “core” and different logics of relationship
with the “noncore”.
According to the relevant time-frame and geographical scope, we consider how the
core’s legal acquis in each sector is divisible or indivisible (each Member State being able
only to be in or out of the acquis, or being able to pick and choose which aspects of the
policy area it participates in). Another relevant variable we will consider when observing
the model of governance in each sector is the ability of gate-keepers (i.e. members of the
core of the acquis) to assess potential candidates to join the core. Such discretion can be
limited or unlimited.
Although the different dynamics between the core and noncore groups of Member
States should be assessed separately for each policy area, analogies can be observed in
the models of governance followed by European integration in these three fields.
Whereas the right to mobility for EU workers has been an acquis of the EU since its origin
(section 1.1), the construction of a common migration and asylum policy can repeatedly
be seen as the answer to “problem pressure” and a reaction to “crisis events”, gradually
developing in reaction to previous decision-making cycles. Functional interdependencies
and spill-over effects have given in some circumstances negative and in others positive
impulses to the European integration process in the migration field (section 1.2). The po2 Ibidem.
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litical demand for burden-sharing and “harmonization of attraction factors” has instead
been the key driver for the communitarisation process in the asylum area (section 1.3).
2.1. The core of mobility rights for EU citizens and the enlargement dynamic
The right of EU citizens to freely move to and live in any EU country, along with their
family members, is one of the four fundamental freedoms enshrined in EU law and a cornerstone of EU integration. Mobility rights for workers was a key provision of the Treaty of
Rome (1957), and was gradually expanded by subsequent Treaty amendments up to the
Treaty of Maastricht (1992), which extended the right to free movement to all EU citizens,
irrespective of whether they are economically active or not.
The original “mobility core” corresponds to the six Member States which founded the
European Economic Community (Belgium, France, Germany, Italy, Luxembourg and the
Netherlands), and also applies, in general terms, to the countries in the European Economic Area, namely Iceland, Liechtenstein and Norway.
Every EU citizen has the right to live in another EU country for up to three months without
any conditions. The right to reside for more than three months is subject to certain conditions, depending on the individual’s status in the host Member State.3 Member States are
entitled to impose public policy limitations on the free movement of workers, for example
on specified grounds of public security and public health, observing strict procedural
requirements.4
This acquis of mobility rights is indivisible: the conferral of the right of free movement on
the citizens of a Member State is a direct consequence of its accession to the EU.
3 The rules and conditions applying to free movement and residence are set out in Council Directive
2004/38/EC of 29 April 2004.
4 Directive 64/221/EEC of 25 February 1964.
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When a new Member State accedes to the Union,5 the governments of the existing Member States can decide whether they want to apply restrictions to workers from the new
Member State, and, if so, what kind of restrictions. However, they are not allowed to restrict the general freedom to travel, only the right to work in another Member State as an
employed person. For the first two years after a country joins the EU, the national law and
policy of the existing Member States determines access to their labour market of workers
from the new Member State, meaning that those workers may need a work permit. If a
country wants to continue to apply these restrictions for three more years, it must inform
the Commission before the end of the first two years. After that, countries can continue
to apply restrictions for another two years if they inform the Commission of serious disturbances in their labour market. In the case of Croatian accession, the negotiation Treaties
defined that all restrictions must end after 7 years.
Once they are legally employed in another EU country, workers are entitled to equal treatment with workers of the country where they are working. The right of gate-keepers to
determine accession to the core is therefore limited in scope and time.
Free movement in the countries originally constituting the European Economic Community was encouraged, and was functional in a period of economic growth. No restriction
on mobility was introduced with the first enlargement, in 1973, when Denmark, Ireland
and the United Kingdom joined.
Transitional periods were introduced on the occasion of the accession of Greece in 1981
and Spain and Portugal in 1986, but, in a favourable economic conjuncture, accession
allowed citizens of countries with lower pro capita incomes to accelerate a phase of economic growth, and consequently even discouraged the movement of people looking for
jobs abroad. The presence of Greek, Spanish and Portuguese communities in France and
Germany progressively decreased after accession.
5 22 of the 28 EU Member States and all four European Free Trade Association (EFTA) Member States
participate in the Schengen Area. Of the six EU Member States that do not form part of the Schengen
Area, Ireland and the United Kingdom maintain opt-outs with respect to some aspects of the Schengen
acquis. The remaining four Member States, i.e. Bulgaria, Croatia, Cyprus and Romania, are obliged eventually to join the Schengen Area. However, before fully implementing the Schengen rules, each Member
State must have its preparedness assessed in four policy areas: air borders, visas, police cooperation, and
personal data protection.
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When Austria, Finland and Sweden joined the EU in 1995, citizens of the 15 Member States
could freely circulate in almost the whole of Western Europe.
For the 2004 enlargement, the largest single enlargement in terms of people and number
of countries, restrictions applied to citizens of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, but not to citizens of Cyprus and Malta.
With the accession of Bulgaria and Romania in 2007, a moratorium on free access to labour markets was adopted by most Member States, mainly invoking the effects of the
economic crisis to justify their fears of the arrival of new waves of competitors on their
national labour markets and on their national welfare systems.
The deadline of January 2014 as the very end of the transitional period for restrictions
imposed on citizens of Bulgaria and Romania was the occasion, even for some of the six
founding Member States composing the core of the acquis on movement of people within the European Union, to call into question the acquis of mobility rights for EU citizens.
2.2. The functionalist construction of the common migration policy: communitarisation through gradualism and flexibility
At the end of World War II, Western European countries actively tried to tap into new pools
of labour. They strategically signed bilateral agreements for the recruitment of foreign labour in competition between themselves, aiming at securing the “best” immigrants from
both Southern European and non-European countries (often former colonies). The past
of intra-European relations in the field of migration management is one of competition,
rather than cooperation. The only convergences were between Mediterranean labour-exporting countries and Continental labour importers. Even when traditional labour importers decided to close their borders following the economic recession after the oil crisis in
the 1970s, that decision was taken by each country in an uncoordinated, competitive way.
National borders were closed without considering the possible impact on neighbouring
countries, not to speak of the impact on the countries of origin. Newcomers came to
be considered mainly as potential competitors and threats to national economies. Ever
stricter categorization was introduced to distinguish between desired and undesired im-
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migrants.
It was only as from the mid-1980s that European governments began to recognize the
need to find ways to cooperate in a functional way. European leaders believed in the need
to accomplish economic integration. This implied - as the European Single Act of 1986 put
it - the construction of an area of free circulation, not only for goods and capital, but also
for people, whatever their origin. But while that decision was being taken, security concerns started to spread among security professionals first, and politicians next. The abolition of internal borders meant that “compensatory measures” at external borders needed
to be adopted in order to avoid that the completion of the internal market affected negatively the overall internal security of a borderless space. This was the techno-political logic
underlying such cooperation: enabling individuals to cross internal borders without being
subjected to border checks was the dominant paradigm for most of the 1990s.
The original “core” of European cooperation on migration was therefore constituted by
the signature, in 1985, by five Member States (a geographical core formed by France and
Germany plus the three Benelux countries) of the Schengen Convention, which came
into force in 1995. Originally based on a purely intergovernmental scheme, Schengen is a
paradigmatic example of cooperation outside the Treaties, which was progressively incorporated into the main body of the EU acquis (the Amsterdam Treaty in 1999).
Differently from the mobility core, the migration core is not indivisible, and the accession
of new Member States to the Schengen Area is subject to discretionary assessment by the
core Member States, which can potentially be extended for an unlimited period of time.
The establishment of a common external border for the Schengen Area also called for the
setting-up of a common visa policy, defining non-EU countries whose citizens must have
a visa (a so-called “Schengen visa”) when crossing EU borders. A Schengen visa grants a
right to short stays of up to three months.
In a logic of spill-over effects, the introduction of common visa requirements for the entry
of citizens from some non-EU countries is an outcome of the Schengen “philosophy”. This
process was driven further by the perception of the “asylum crisis” of the early 1990s and
the upsurge in asylum applications in Northern European countries in the aftermath of
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the collapse of the Communist bloc. The aim of the process was the prevention of the
arrival on EU territory of potential asylum-seekers.
Visa policy has been among the earliest and most successful areas of coordination among
EU Member States. All Schengen Area Member States grant short-term visas according
to the same highly-structured procedure, regulated by the same Community Visa Code.
Schengen visa holders are allowed to circulate freely across the entire common space.
The technocratic and functionalist paradigm that allowed European cooperation in the
migration field to take some pragmatic steps forward soon showed its limits. Those limits
were firstly institutional, resulting from the tight “unanimity jacket” typical of the intergovernmental nature of cooperation in the field. They were, however, also political, resulting
from the lack of democratic legitimacy and the narrow strategic horizon.
The Maastricht Treaty (1992) formalized the will to cooperate on migration and asylum
policies as “components of a new agenda on security” by creating an “intergovernmental
pillar” dealing with Justice and Home Affairs, based on unanimous decision-making largely precluding a role for supranational EU institutions.
Progressively, and notably under the Finnish presidency during the Tampere summit of
October 1999, European Heads of State and Government pushed their political will and
their rhetoric beyond narrowly sectorial functionalism. In the framework of a broad strategy aimed at building a European “Area of Freedom, Security and Justice”, a comprehensive approach to immigration and asylum was adopted. The aim of the common migration policy was no longer limited to compensating the potential negative impact of the
suppression of internal borders, but also covered managing legal immigration efficiently,
promoting the social integration of migrants, combating discrimination, and ensuring international protection for those in need, as well as fighting the causes of forced migration
worldwide, and preventing illegal economic immigration through development cooperation.
The Tampere Programme (which inaugurated a pattern of long-term interinstitutional planning and coordination, followed by The Hague and the Stockholm Programmes)
marked a shift from functionalism to a more comprehensive approach to agenda-setting.
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Institutionally, progress from an intergovernmental approach to a full communitarisation
of immigration and asylum policies was slower but, to a certain extent, irreversible and
resolute.
With the Amsterdam Treaty (1999), migration and asylum were extracted from the JHA
pillar and inserted alongside free movement in a new Title IV of the EC Treaty covering
free movement, migration and asylum. Gradualism characterized, once again, this process, with the so-called “passerelle clause” foreseeing that, as from 2004, the Council could
unanimously decide to introduce qualified majority voting into decision-making on proposals relating to immigration and asylum. A legal basis for EU action in this field was
established (Articles 62-64 EC). The Amsterdam Treaty also integrated the Schengen Convention into the Treaty framework.
With the Nice Treaty (2001), provisions for the use of qualified majority voting and co-decision in the area of migration were approved, and with the entry into force of the Lisbon Treaty on 1 December 2009, migration and asylum were fully and unconditionally
incorporated within the Treaty framework, with qualified majority voting in the Council,
co-decision with the European Parliament and a full role for the Court of Justice (Articles
77-80 TFEU). A common EU migration policy was institutionalised, although with the notable omission of admission policy, as the Lisbon Treaty clearly states that measures on
migration “do not affect the right of Member States to determine volumes of admission of
third-country nationals coming from third countries to their territory in order to seek work,
whether employed or self-employed” (Article 79 TFEU).
Flexibility within the Treaty system was the political device employed to accommodate
diversity and to facilitate convergence. Opt outs and opt ins, protocols and derogations
inserted by Member States into legislative texts could be seen as a threat to the “traditional Community model”, but also offered scope for the attainment of objectives in areas
of “high politics”: those that are “out” can still use negotiations and derogations to define
their position in relation to agreed measures. From a certain perspective, such determined
progress towards the full communitarisation of migration and asylum policies was made
possible by following a gradualist approach and leaving a margin of “flexibility” to each
Member State. At the same time, this potentially least-worst solution to the practical problems of co-operation and integration in contentious areas, the “price to pay” for reaching
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agreement, can also be seen as the main limit on such cooperation, still leaving crucial
aspects of migration policy to the intergovernmental method.
2.3. The Common European Asylum System: burden-sharing as a key
driver
Until the end of the 1970s, the number of asylum applications in Europe was low, and
most applicants were exiles from the Socialist bloc to whom Western countries were keen
to grant refugee status. As from 1980s, following the increasing political instability in areas close to the EU’s borders, such as the exacerbation of Kurdish persecution in Iraq, the
break-up of Yugoslavia, and the conflict in Kosovo, some EU Member States in particular
experienced a rise in asylum applications.
Breakdowns of asylum flows show that the peaks in asylum claims were mainly absorbed
by a few Member States, above all Germany, which in 1992 received 438,000 out of a total
of 675,000 asylum applications in Europe.
Such imbalance in the flux of asylum-seekers towards certain destination countries can
be explained by several factors: geographical reasons and proximity to areas of conflict;
political factors, such as foreign policy choices and privileged international relations; social factors, such as the historical presence of a foreign community abroad and of social
networks of the same community, as well as the role of an active civil society; and policy
factors, such as the treatment of asylum-seekers , reception conditions and national welfare regimes.
With Germany at the forefront of initiatives as from the first half of the 1990s, on the
grounds of the need to restrict bogus asylum claims, restrictive reforms of national legislation were undertaken and a strong movement towards more effective burden-sharing
and the harmonisation of asylum systems was promoted.6 Such harmonisation of pull fac6 In 1993, the German “Basic Law” was revised to limit, in practice, the recognition of refugee status and
the right to asylum. Both the “safe third country” and the “safe country of origin” concepts were incorporated into the German constitution and further defined in German asylum procedures. EU Member
States were by definition considered to be safe countries of origin. Furthermore, the German constitution
defines countries as safe “in which, on the basis of their laws, enforcement practices and general political
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tors was driven and shaped by the priorities of a core of Continental European countries.
In the official political discourse of the German authorities in EU fora, there was a clear and
largely successful attempt at emphasizing the importance of some driving factors behind
asylum migration and of the international distribution of asylum claims. In particular, the
unfitness of the asylum systems of peripheral countries (Southern European countries
first, Eastern countries at a later stage) and the lower welfare opportunities in these Member States were effectively presented as the main factors explaining the excessive concentration of asylum claims in Northern European Members States. Other factors, which have
been shown to be equally if not more important by several sociological studies, including
in particular the pull factor represented by already-established immigrant communities
from the same areas of origin, were systematically downplayed.
Such a strategy pursued the long-term goal of pushing peripheral countries to reinforce
their national asylum systems in order to rebalance perceived asymmetries among Member States which was seen to explain the uneven distribution of the “asylum burden”. A
belt of safe countries would thus be created capable of intercepting and stabilizing locally
asylum-seekers who would otherwise potentially move towards more Northern parts of
Europe.
Also with the aim of redistributing asylum-seekers more equally throughout Europe, the
concept of “first safe country” was promoted as the very core of the Common European
Asylum System. This principle, already referred to in the Schengen Convention (Article
30),7 was codified by the Convention on determining the state responsible for examining
asylum applications lodged in one of the Member States, which was signed in Dublin in
1990 and ratified by 12 EU Member States.8 According to the Dublin Convention, which
conditions, it can be safely concluded that neither political persecution nor inhuman or degrading punishment or treatment exists”. See Article 16a(3) of the Basic Law for the Federal Republic of Germany, http://
www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0088.
7 “The Contracting Party responsible for the processing of an application for asylum shall be determined
as follows: [...] (e) If the applicant for asylum has entered the territory of the Contracting Parties without
being in possession of one or more documents permitting the crossing of the border, determined by
the Executive Committee, the Contracting Party across the external borders of which the applicant for
asylum has entered the territory of the Contracting Parties shall be responsible.” The Schengen acquis.
Convention implementing the Schengen Agreement of 14 June 1985…, 19 June 1990, http://eur-lex.europa.
eu/legal-content/en/TXT/?uri=celex:42000A0922%2802%29.
8 Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal, Spain
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entered into force in 1997, in the “Dublin space” represented by the sum of the national
territories of the signatory parties, an asylum-seeker can present only one asylum claim.
The system aimed at ensuring that each claim would be examined by one responsible
authority and that asylum-seekers should not be returned from one Member State to
another. At the same time, it inevitably placed the major burden of the management and
first reception of asylum-seekers’ claims on the more peripheral countries.
The core of the C European Asylum System is again intergovernmental in origin, and has
since been progressively “communitarised”. In 1992, with the Maastricht Treaty, asylum
became an “area of common interest” regulated in accordance with typically intergovernmental decision-making principles. Under the Amsterdam Treaty, Article 63 EC established
a 5-year deadline for adopting policies to complete a common asylum policy to be dealt
with under the first pillar and in accordance with the Community method. With the Treaty
of Nice in 2001, asylum shifted to the “first pillar”, and was therefore subject to qualified
majority voting, with a greater role for the Commission, the Parliament and the European
Court of Justice.
With the communitarisation of the right to asylum that followed the Treaty of Amsterdam,
the Dublin Convention was replaced by the Dublin Regulation. Even in this revised legal
framework, however, the key principle of the responsibility of the first state of entry for the
examination of asylum applications presented by persons in irregular conditions - even
though strongly criticised by peripheral Member States which considered this principle to
have an unequal impact - was left untouched, with only minor exceptions.
The core of the Common European Asylum System is also indivisible. No assessment is to
be made by the other core Member States. Under the Amsterdam Treaty, a general right
to opt out or to opt in to measures concerning asylum, immigration and border control
was established. The use of qualified majority voting for asylum measures, agreed at Amsterdam in 1997, does not affect the general right to opt out.
and the United Kingdom.
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The United Kingdom, Ireland and Denmark negotiated an opt-out clause and are not
bound by the Common European Asylum System9 Complementary to the asylum core
acquis, a number of directives have been adopted by the EU with the aim of harmonising
asylum legislation and systems.10 As directives, they bind Member States as to the results
to be achieved, without dictating the means of achieving those objectives, thus leaving
Member States a certain amount of leeway as to the implementation of the goal to be
met.
The harmonisation of national asylum legislation has therefore been encouraged by the
legislation adopted by the EU, whereas burden-sharing has been formally promoted
through the redistribution of asylum-seekers by the Dublin Convention and Regulation
and economic compensation measures.11
9 According to Title V of the TFEU, the UK and Ireland, on the one hand, can decide to opt in to any
single measure, whereas Denmark, on the other hand, has a constitutional limit on opting-in, and is
therefore completely excluded from the Common European Asylum System.
10 The Reception Conditions Directive (recast version 2013/33/EU, due to be transposed by July 2015)
defines standards to be granted to asylum-seekers in accordance with the Geneva Convention. Member States can apply such rules also to complementary forms of protection. The recent revision of the
Directive improved some aspects of reception conditions (such as housing) for asylum-seekers, and
underlined that detention is only to be applied as a measure of last resort. The Qualification Directive
(recast version 2011/95/EU, due to be transposed by December 2013) clarifies the grounds for granting international protection, including “subsidiary protection”, recognising that situations deserving protection
may go beyond the scope of the Geneva Convention and its definition of “refugee”. It aims at preventing
so-called “asylum shopping” by asylum-seekers searching for the most generous national regime by ensuring a minimum level of rights and procedures across the EU. This aspect is addressed in particular by
the Asylum Procedures Directive (recast version 2013/32/EU, due to be transposed by July 2015), which
aims at limiting the secondary movement of asylum applicants between Member States where such
movement is caused by differences in legal frameworks, and at approximating rules on the procedures
for granting and withdrawing refugee status. The Temporary Protection Directive (2001/55/EC) was intended to deal with displaced persons who are unable to return to their country of origin when there is a
risk that the standard asylum system might struggle to cope with demand stemming from a mass influx
which risks having a negative impact on the processing of claims. This was intended to promote solidarity and burden-sharing among EU Member States in circumstances where large numbers of potential refugees are received at any one time. The system should also have allowed for the transfer of beneficiaries
between EU Member States, based on a voluntary offer from a Member State and on the consent of the
transferee. But this Directive has never been used, and remains a dead letter for Member States so far.
11 The “European Refugee Fund”, together with the “External Border Fund”, the “European Return Fund”
and the “European Integration Fund”, is part of the general programme entitled “Solidarity and Management of Migration Flows”, which between 2007 and 2013 allocated almost 4 billion euros to ensuring the
fair sharing of responsibilities between EU countries for the financial burden that arises from the integrat-
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3. The upsurge of centrifugal forces in the MAM policy
fields
The cooperation on mobility, migration and asylum described above was made possible
by a relatively homogeneous club of European destination countries and a relatively stable neighbourhood surrounding European borders.
With the Southern enlargement in the mid-1980s, a fast economic catch-up on the part of
the new acceding countries even marked a decrease in the migratory pressure on other
EU Member States. As from the 1990s, however, all Southern European countries turned
into net immigration receivers, and this transition was critical in enhancing the perception
of a strategic convergence of interests among Member States to strengthen external migration controls.
The global economic crisis, which affected in particular those EU Member States which
were counting on large-scale inflows of low-skilled and low-paid labour migration, such as
the Mediterranean countries, together with the growing political instability at the Southern external borders which resulted from the tormented transitions to democracy taking
place in North Africa, changed the structural and economic conditions of migration and
mobility.
In this context, structural limits on cooperation on migration and asylum became more
and more evident, and even the mobility of EU citizens became a controversial issue.
3.1. Questioning mobility rights
The 2013 European Year of Citizens was profoundly marked by escalating attacks against
one of the EU’s major achievements for EU citizens: freedom of movement. Despite strong
evidence against the idea that mobile EU citizens represent a burden on the welfare sysed management of the Union’s external borders and from the implementation of common asylum and
immigration policies. See the European Commission website: Migration, Asylum and Borders, updated 19
March 2014, http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders.
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tems of host Member States, the debate on free movement was twisted by some national
leaders and exacerbated by the expiry on 1 January 2014 of restrictions still imposed by
some Member States on the mobility of citizens from Bulgaria and Romania.
In April 2013, with a joint letter to the Irish presidency of the Union, four Ministers - representing Austria, Germany, the Netherlands and the United Kingdom - underlined the
need to protect freedom of movement against abuse, in particular where it strains social
systems, and, consequently, requested the adoption of new restrictive and punitive measures.
In December 2013, the UK (Prime Minister David Cameron and the ruling Conservative
party) went so far as to announce its intention to prevent non-British citizens from having access to social benefits and to block tax credits for the first five years of residence,
or to link free movement to minimum income thresholds. Plans were also announced
to cap the number of “EU migrants” entering the country to 75,000 per year “to protect
low-skilled UK workers from foreign competition and to stop social welfare abuse by EU
migrants”.12 In addition, it should be stressed that the restrictions could entail revising the
EU Treaties and associated fundamental rules on the free movement of people so as to
introduce transitional controls based on economic criteria for new countries that join the
EU in the future.
The quarrel between these Member States, the UK in the first place, and the European
Commission and Parliament has been growing. The European institutions recalled that
safeguards against so-called benefit tourism are already foreseen by current EU legislation,
and that any changes on access to benefits would first have to be proposed by the Commission and would now need to be supported by a qualified majority of Member States
as well as by the Parliament. Moreover, a study for the Commission produced evidence
that EU citizens move from one Member State to another overwhelmingly for work reasons and not to claim welfare, and that “EU migrants” tend to pay more in tax and social
security to the welfare system of the host country than they receive in benefits, meaning
that so-called “benefit tourism” is neither widespread nor systematic.13 The study also
12 Nikolaj Nielsen, “Mooted UK migrant cap would be ‘illegal’”, in EUobserver, 16 December 2013, http://
euobserver.com/justice/122491.
13 ICF GHK and Milieu Ltd., A fact finding analysis on the impact on the Member States’ social security systems
No. 5 • APRIL 2014
16
shows that migrant flows change according to the economic well-being of a country:
Spain and Ireland have seen a decline in intra-EU inward migration, whereas flows to Austria, Denmark and Germany have increased.
Questioning the mobility rights of EU citizens - thus challenging the core of European
integration - has moved up the political agenda, together with general anti-immigrant
sentiment in the EU.14
Romania and Bulgaria’s full accession to the Schengen Area has also been strongly opposed by the Franco-German duo, as well as the Netherlands, although Schengen accession will not “open” Western Europe’s borders to Bulgarians and Romanians, who have
been free to travel to the Schengen space since 2002 when visa obligations were lifted,
nor will it affect movement to the West by the Roma population of these two countries.
The upsurge of such centrifugal forces undermining the core of EU mobility rights culminated with the decision taken by Switzerland in a referendum held on 9 February 2014
to reintroduce immigration quotas with the EU.15 The results of this popular consultation,
which reflected in particular concerns about competition between the local and Italian
workforces, risk triggering a ripple effect across Europe.
of the entitlements of non-active intra-EU migrants to special non-contributory cash benefits and healthcare
granted on the basis of residence, October 2013, http://bookshop.europa.eu/en/-pbKE0413060.
14 Recent polls have revealed widespread fears: 64% of British citizens, 63% of French citizens and 58%
of German citizens disapprove of Romanian and Bulgarian citizens having the full right to work in any
other EU Member State. Such percentages further increased when respondents were asked if they would
approve of restricting rights to benefits for citizens from other EU Member States: 83% in Britain, 73% in
Germany and 72% in France are in favour of such restrictions. See Financial Times/Harris Polls, A729 - FT
Immigration, October 2013, http://media.ft.com/cms/8caa41b8-383e-11e3-8668-00144feab7de.pdf.
15 Although Switzerland is not an EU Member State, its immigration policy is based on free movement of
citizens to and from the EU, with some exceptions, as well as on allowing in a restricted number of nonEU citizens. This agreement on the free movement of people, which came into force 12 years ago, was
signed as part of a package of agreements with the EU.
No. 5 • APRIL 2014
17
3.2. The emergence of structural limits to European cooperation on migration
Although the regulation of legal migration for economic purposes was explicitly inserted
among EU competencies with the Treaty of Amsterdam (1999), the repeated attempts by
the European Commission to initiate a harmonization or at least a coordination process
in this field have met overall with disappointing results due to persistent opposition and
scepticism from the capitals of the Member States. The proposal of Commissioner Antonio Vitorino in 2001 for the establishment of common rules regarding the admission of
third-country nationals for work and self-employment purposes16 was abruptly rejected
by Member States, and a sectorial approach was followed thereafter on the basis of the
Commission’s Green Paper on economic migration17 and Policy Plan on legal migration,18
this latter providing for the adoption of five legislative proposals, addressing specific categories of migrant workers. Since then, several regulations and directives have tackled
important sectors of legal migration, such as family reunification19 or the status of longterm residents.20 If Member States agreed on common rules targeting specific categories
of third-country national workers,21 they have never been keen to adopt common comprehensive rules regarding the admission of migrants for labour purposes, which remains
essentially determined at national level.
Progress in the harmonisation of legislative and operational action at EU level has primarily been focused on security-related issues. Border management, visa policy, irregular
16 European Commission, Proposal for a directive on the conditions of entry and residence of third-country
nationals for the purpose of paid employment and self-employed economic activities (COM(2001)386), 11 July
2001, http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52001PC0386.
17 European Commission, Green Paper on an EU approach to managing economic migration
(COM(2004)811), 11 January 2005, http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52004DC0811.
18 European Commission, Policy plan on legal migration (COM(2005)669), 21 December 2005, http://eurlex.europa.eu/legal-content/en/TXT/?uri=celex:52005DC0669.
19 Council Directive 2003/86/EC of 22 September 2003.
20 Council Directive 2003/109/EC of 25 November 2003.
21 Cf. Council Directives 2004/114/EC of 13 December 2004, 2005/71/EC of 12 October 2005, and
2009/50/EC of 25 May 2009; cf. also the Directive 2014/36/EU of 26 February 2014, and the Commission
Proposal for a directive on conditions of entry and residence of third-country nationals (COM(2010)378), on
which final negotiations are still, however, on-going.
No. 5 • APRIL 2014
18
migration and readmission agreements have taken precedence in the joint actions of
Member States.
At the end of 2010, the “fight against illegal immigration” across the Mediterranean
seemed to be close to a successful conclusion, and landings on the Southern coasts of
Europe were reduced to a few hundred. This migration control regime was based on bilateral activism on the part of coastal states, but it rested on brittle foundations, as it was
based on agreements with the autocrats in power on the other shore, and was ultimately
conditional upon their readiness and capacity to impose exit controls and to enforce the
systematic readmission of both their own people and transit migrants, who mostly originated from poor and diplomatically weak countries of origin.
The EU integrated border control system was therefore strongly and directly affected by
the fall of the North African regimes. The collapse of exit restrictions in Southern Tunisia in
the early phase of the “Jasmine revolution” is the clearest example.
Both regular and irregular emigration from Tunisia and Libya has substantially increased
since 2011, not to consider the war exodus from Libya to neighbouring North African
countries.
Strong media messages and a public perception of mass inflows were followed by the
precarious reintroduction of cooperation with the new post-revolutionary authorities,
which was principally based on the reactivation of bilateral negotiations by Italy with the
marginal support of the EU institutions. The failure of the transitions in Egypt and Libya
led to a reduction of the control capacities of the weak new governments and the reactivation of smuggling and irregular migration networks and flows.
Moreover, the crisis and declining labour demand reduced the attractiveness of Italy and
other Southern European countries as destination countries for such flows. As a consequence, transit flows from Southern to Continental and Northern Europe were reactivated, with growing tension around the issue of so-called “secondary movements” between
Southern and other Member States.
No. 5 • APRIL 2014
19
The interpretation of the Schengen provisions and the balance between free circulation
and border controls within the common space became an issue between the Commission and some Member States. Until recently, Schengen was unanimously praised as a
European success story. However, the arrival in Lampedusa in spring 2011 of some 20,000
Tunisians fleeing their country shook the system to its foundation.22
These developments called into question the core of European cooperation on migration,
namely the Schengen acquis. In this context, it is also worth mentioning the potential
derogations to another branch of the EU acquis on migration, namely the common visa
policy. As described in Chapter 1, visa policy was among the earliest and most successful
areas of coordination among Member States. Despite such coordination, differences in the
granting of visas by Member States remain relevant,23 and have an impact on migration
22 As the migrants wanted to go to France, and Rome was not willing to let them stay in Italy, the Italian
authorities granted six-month residence permits allowing them to move across the entire Schengen
area. On 17 April, the French authorities blocked every train from the Italian town of Vintimille to France,
causing tensions between Rome and Paris. Berlusconi and Sarkozy eventually reached an agreement,
and on 26 April sent a letter to the European Commission calling for a reform of the procedure to reintroduce border controls in extraordinary circumstances. The European Commission presented its proposals
on 16 September, saying that the decision to reintroduce border controls should be taken at the European level following a proposal from the Commission, and stressing that a unilateral reintroduction should
only be admissible in case of emergency and for no more than five days, with the EU being competent
to authorize any extension. In the Commission's view, reintroducing internal border checks should
remain a last resort solution when no other measure had proved able to mitigate the threats identified,
and a threat to national security or public order should remain the sole grounds for such a measure. Nevertheless, keen to reap the benefits in terms of domestic popularity, in May that same year the Danish
Government unilaterally reintroduced border controls with Germany and Sweden, with a move deemed,
again, unjustified by the Commission. Emily Delcher, Freedom of movement and the Schengen, Reykjavík,
Icelandic Human Rights Centre, July 2013, http://www.humanrights.is/human-rights-and-iceland/the-notion-of-human-rights/freedom-of-movement-and-schengen.
23 Recent studies show that each major Member State maintains a distinctive pattern of short-term visa
supply, significantly moulded by geopolitical, economic and historical legacies. Moreover, the decision to
grant, or deny, a short-term visa is largely left by international law to the discretion of states and bureaucrats. See Claudia Finotelli and Giuseppe Sciortino, “Through the Gates of the Fortress: European Visa
Policies and the Limits of Immigration Control”, in Perspectives on European Politics and Society, Vol. 14, No.
1 (2013), p. 80-101. Infantino and Zampagni have also illustrated, through in-depth fieldwork, that the expanding trend to outsource specific steps of visa procedures to private service providers implies a high
degree of differentiation in practice between different embassies, even of the same state. See Federica
Infantino, “La frontière au guichet. Politiques et pratiques des visas Schengen à l’Ambassade et au Consulat d’Italie au Maroc”, in Champ pénal/Penal field, Vol. 7 (2010), http://champpenal.revues.org/7864; Francesca Zampagni, “A Visa for Schengen’s Europe: Consular practices and regular migration from Senegal to
No. 5 • APRIL 2014
20
movements, as third-country nationals can freely circulate and, under certain conditions,
work in a different Member State from that which issued the visa. The German visa scandal of 2000-2005 was emblematic in this respect,24 as was, more recently, the introduction
by the Commission of a safeguard clause to permit the temporary reintroduction of a visa
requirement for citizens of certain third countries.25
3.3. Formal and substantial burden-sharing in the management of mixed
flows
Advances in EU policies on immigration and asylum were often in the past propelled by
tragic events or emergency situations. After five people were killed in September 2005
during a mass attempt by migrants to get into the Spanish enclave of Ceuta in North Africa, a wave of policy activism was triggered which led to the first Euro-African Conference
on Migration and Development, held in Rabat in July 2006,26 and to the adoption and
Italy”, in CARIM Analytic and Synthetic Notes, No. 2011/59 (July 2011), http://hdl.handle.net/1814/18485.
24 In 2000, the German Ministry of Foreign Affairs issued the so-called “Volmer Directive”, which shifted the burden of proof from the applicant to the embassy, with the result that embassy workers were
obliged, when in doubt, to decide in favour of issuing a visa to the applicant. The change had powerful
consequences, with the German Embassy in Kiev processing nearly 300,000 applications for short-term
visas in 2001 alone. The German decision had Europe-wide consequences: following the Volmer Directive, large numbers of Eastern Europeans, most notably Ukrainians and Moldovans, reached the irregular labour market of Southern European Member States, from which they had previously been almost
absent. The German opposition called for the Foreign Minister of the time, Joschka Fischer, to resign, and
the European Commission carried out an official review of German visa policy. See Claudia Finotelli and
Giuseppe Sciortino, “Through the Gates of the Fortress…”, cit., p. 90.
25 Following visa liberalisation for citizens of Serbia, Macedonia and Montenegro as from December
2009, and of Albania and Bosnia-Herzegovina as from December 2010, asylum-seekers from these
countries represented between 10% and 21% of the total of asylum claims in the EU in last 5 years. The
number of asylum-seekers rapidly increased, in particular those seeking asylum in Germany, Sweden
and Luxembourg. Noting that most applications for international protection by Western Balkan citizens
enjoying visa-free travel were declared manifestly unfounded, in May 2011 the European Commission
proposed the introduction of a safeguard clause to permit the temporary reintroduction of the visa
requirement for citizens of certain third countries. See European Commission, Cecilia Malmström on the
adoption of a visa waiver suspension mechanism (Memo/13/784), 12 September 2013, http://europa.eu/
rapid/press-release_MEMO-13-784_en.htm.
26 Ministers from more than 50 countries of origin, transit and destination met for the first time in order
to respond to the questions raised by the complex challenges of migration, and agreed on the need
to adopt a “balanced approach to migration issues in a spirit of shared responsibilities” and to create a
framework for dialogue and consultation within which concrete initiatives would be implemented, such
No. 5 • APRIL 2014
21
subsequent reinforcement of the Global Approach to Migration and Mobility.27
On 3 October 2013, a boat carrying around 500 migrants sank off the coast of Lampedusa.
The loss of human lives triggered a strong call for action from both European institutions
and Member States. A Commission-led Task Force for the Mediterranean (TFM) was set up
with the aim of preventing migrants from undertaking dangerous journeys to the shores
of the European Union, and of implementing actions, also in cooperation with third countries, such as regional protection, resettlement and reinforced legal avenues to Europe,
the fight against trafficking, smuggling and organised crime, reinforced border surveillance, contributing to the protection and saving of lives of migrants in the Mediterranean,
and assistance and solidarity with Member States dealing with high migration pressure.28
This was to be supported by information-sharing on the situation in the Mediterranean
through the European Border Surveillance System (EUROSUR), which became operational
on 2 December 2013.
In addition, the European Parliament adopted a forward-looking resolution on migratory
flows in the Mediterranean which called for a coordinated approach based on solidarity
and responsibility, with the support of common instruments, and which stressed the importance of creating legal entry channels into the EU as a necessary alternative to dangerous irregular entry, which could entail the risk of human trafficking and the loss of human
lives.29
The Italian Interior Minister and Deputy Prime Minister Angelino Alfano said he hoped that
“divine providence has led to this tragedy so that Europe will open its eyes”. He also called
as preventing and reducing illegal migration, tackling root causes, improving the organisation of legal
migration, and promoting the connections between migration and development. See Introduction to the
Rabat Process, http://www.processusderabat.net/web/index.php/process.
27 European Commission, On migration (COM(2011)248), 4 May 2011, http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52011DC0248; The Global Approach to Migration and Mobility (COM(2011)743), 18
November 2011, http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52011DC0743.
28 European Commission, On the work of the Task Force Mediterranean (COM(2013)869), 4 December 2013,
http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52013DC0869.
29 European Parliament, Resolution on migratory flows in the Mediterranean, with particular attention to the
tragic events off Lampedusa (P7_TA(2013)0448), 23 October 2013, http://www.europarl.europa.eu/sides/
getDoc.do?type=TA&language=EN&reference=P7-TA-2013-448.
No. 5 • APRIL 2014
22
for urgent changes to the Dublin Regulation, since it demanded “much too much” from
those Mediterranean countries where refugees first set foot on European soil”.30 Martin
Schulz, President of the European Parliament, also called for a more balanced distribution
of responsibilities, and characterized the refugee issue as a “problem for all EU Member
States”. President Schulz argued that Italy should not be left alone with the task of coping
with the massive influx of people from Africa and Asia, as “[i]t is a question of solidarity
within the Member States of the EU as well as a question of responsibility towards refugees. […] Italy’s frontier towards the South is also every other Member State’s problem. We
have a common challenge and responsibility”.31
The revised Dublin Regulation, which entered into force in January 2014, introduced some
exceptions to the transfer of asylum-seekers to the Member State of first destination, such
as when the person has family already residing in another Member State, or is in a particularly vulnerable situation, or even where there is a risk that the person will be subjected
to inhuman and degrading treatment. Incidentally, one could say that this last exception might entail a downward pressure on the reception systems of peripheral countries,
which do not in any case have an incentive to improve their currently often deficient
standards in the treatment of asylum-seekers.
The new Regulation also provides enhanced safeguards for asylum-seekers and a new
surveillance system, the so-called “early warning mechanism”, to detect problems and get
help from the Commission and the EASO (European Asylum Office) in Malta. The aim is
to prevent situations such as in Greece, where the asylum system completely collapsed.32
Moreover, the EASO has been reinforced and given greater financial resources to ensure
“practical cooperation” in supporting the asylum system of the Union, setting common
high standards and encouraging greater co-operation to ensure that asylum-seekers are
treated equally in an open and fair system, to whichever Member State they might apply.
30 Walter Mayr and Maximilian Popp, “Lampedusa Tragedy: Deaths Prompt Calls to Amend Asylum Rules”,
in Spiegel Online International, 7 October 2013, http://spon.de/ad3aX.
31 European Parliament, Schulz on the tragedy in Lampedusa, 3 October 2013, http://www.europarl.europa.eu/the-president/en/press/press_release_speeches/press_release/2013/2013-october/html/schulzon-the-tragedy-in-lampedusa.
32 All transfers to Greece have in fact been halted for two years, after the ruling of the Court of Justice in
case C-4/11, Bundesrepublik Deutschland v Kaveh Puid, 14 November 2013, http://curia.europa.eu/juris/liste.
jsf?num=C-4/11.
No. 5 • APRIL 2014
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Despite this revision of the current legislation and some efforts to reinforce practical cooperation in response to peripheral states’ insistence on enhancing burden-sharing as
regards asylum, the funding principles of the asylum system have remained the same,
and the management of mixed flows remains the main challenge for the European Union
in the fields of MAM, as we will observe below.
At the meeting of the European Council of 24-25 October 2013, EU leaders did not commit to any action, and decided to “return to asylum and migration issues in a broader
and longer term policy perspective in June 2014, when strategic guidelines for further
legislative and operational planning in the area of freedom, security and justice will be
defined”.33 They therefore decided to postpone any further action or decision until after the May 2014 European Parliament elections. They affirmed that “determined action
should be taken in order to prevent the loss of lives at sea”, according to the “imperative of
prevention and protection and guided by the principle of solidarity and fair sharing of responsibility”, but no further concrete proposal followed this statement, and no indication
was given as to how the solidarity principle, which is clearly set out in the Lisbon Treaty
(Article 80 TFEU), should be implemented.34
4. Challenges ahead and potential governance
implications
With very contentious European elections in sight, together with a complete overhaul of
leading roles, and the on-going economic instability still not resolved, the EU is certainly
navigating in very uncertain waters. The political and institutional future of the MAM policy cluster is of course intrinsically linked to, and strongly affected by, developments on
broader political, institutional and economic levels. Any prediction would thus necessarily
be highly biased and subjective, but it is nevertheless possible to sketch, for each of the
33 European Council, Conclusions of the European Council 24-25 October 2013 (EUCO 169/13), 25 October
2013, http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/139197.pdf.
34 Article 80 TFEU reads as follows: “The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to
this Chapter shall contain appropriate measures to give effect to this principle”.
No. 5 • APRIL 2014
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three policy fields, some scenarios oscillating between a prevalence of the centrifugal
forces which have gained momentum, albeit in different forms, over recent years, a renewed increase in the strength of centripetal dynamics, and more nuanced scenarios of
continuity, where the incapacity of either integrationist or renationalising forces to prevail
leads to de facto policy stagnation.
4.1. Free movement: a “hub and spoke” scenario?35
Mobility of EU citizens is a fully integrated field of policy at the EU level. A successful
defence of this acquis seems to represent the most optimistic scenario that is currently
possible. Unconditional advocates of unrestricted intra-EU mobility promote this as a device for macro-economic rebalancing in an EU which looks increasingly polarized from
a socio-economic point of view. According to such arguments, labour mobility is an opportunity for individuals, despite issues such as the over-qualification of young mobile
workers, which are likely to be temporary. Such commentators propose the use of incentives to encourage people to move and to reinforce the role of public policies, both at EU
and national levels, in order to address potential costs and optimise a better allocation of
human resources.36
More moderate supporters of freedom of movement point out the potential negative
backlashes of too much crisis-driven mobility in terms of brain drain and human resources
impoverishment. Such positions also consider the risks of an enhanced mobility which
could hamper the long-term chances of recovery of the countries which are now worst
hit and which generate the largest intra-EU flows, particularly of youth mobility.
The initiatives taken during the last few years by the European Commission to boost transnational labour mobility aim at compensating the risk of economically-forced mobility,
35 Drawing from the analytical framework proposed by Tocci and Faleg, three ideal types of non-uniform
method of European integration are described: concentric circles, multiple clusters and hub-and-spoke.
The hub-and-spoke version of the EU allows for the possibility, not foreseen in other scenarios, of disintegration, with some Member States opting out of specific policy areas. See Tocci and Giovanni Faleg,
“Towards a More United and Effective Europe: A Framework for Analysis”, cit.
36 Yves Pascouau, “Intra-EU mobility: the ‘second building block’ of EU labour migration policy”, in EPC
Issue Papers, No. 74 (May 2013), http://www.epc.eu/pub_details.php?pub_id=3500.
No. 5 • APRIL 2014
25
focusing in particular on incentives to youth employment.37
On the occasion of the 2013 Demography Forum entitled “Investing in Europe’s demographic future”, László Andor, European Commissioner responsible for Employment, Social Affairs and Inclusion, stated as follows: “Intra EU mobility can in economic terms be
a response to imbalances. But in demographic terms it could lead to imbalances and
serious tensions. Many regions risk being caught in a downward spiral where population
loss and ageing can aggravate the infrastructure gap with more developed regions; this
in turn motivates young adults to leave. [...] EU cohesion policy should be used to help
addressing this situation through investment”.38
The Commission proposes an intermediate way, and sets out a strategy of concrete support to local communities and institutions, which can bear in practice the cost of the
possible negative consequences of mobility. On 25 November 2013, it adopted a communication entitled Free movement of EU citizens and their families,39 in which it set out the
following five concrete actions to help national and local authorities effectively to apply
EU free movement rules and to use available funds on the ground: fighting marriages of
convenience; helping authorities to apply EU social security coordination rules; helping
authorities to meet social inclusion challenges; promoting the exchange of best practices;
and helping local authorities to apply EU free movement rules on the ground.
Nevertheless, as recently demonstrated by the Swiss vote and by the British Prime Minister David Cameron’s talk about a renegotiation of British membership of the EU, with
the possibility of “repatriating” some competences back to London, bleak and regressive
scenarios are still likely, with the risk of a domino effect, disaggregating the very core of
37 2012 Employment Package and Youth Mobility Package 2013 Programme for Social Change and Innovation. cfr. in particular: European Commission, Towards a job-rich recovery (COM(2012)173), 18 April 2012,
http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52012DC0173; Working together for Europe’s
young people. A call to action on youth unemployment (COM(2013)447), 19 June 2013, http://eur-lex.europa.
eu/legal-content/en/TXT/?uri=celex:52013DC0447.
38 European Commission, Investing in Europe’s people is key to restoring prosperity (Speech/13/385), 6 May
2013, http://europa.eu/rapid/press-release_SPEECH-13-385_en.htm.
39 European Commission, Free movement of EU citizens and their families: Five actions to make a difference (COM(2013)837), 25 November 2013, http://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex:52013DC0837.
No. 5 • APRIL 2014
26
mobility rights.
A sort of “hub-and-spoke” future scenario could therefore be envisaged, with some Member States opting out of EU core mobility rights and the persistence of a narrow, still integrated, although restricted, core of Member States defending free movement as an
indivisible acquis.
A more extreme disaggregating scenario could entail a process of hollowing free movement rights via clauses, derogations and caps, such as a re-entry ban on EU citizens returning from another EU Member State. Major prolongations of transition periods for access to
full mobility, or even a structural change of approach, with non-full membership the only
possibility in the future, could represent other components of broader re-nationalisation
scenarios based on reinforcement of the discretionary power of the gate-keepers.40
Indeed, the introduction of a cap on the number of EU citizens entitled to move to other
Member States could only happen through the re-negotiation of the EU Treaties, while
the reduction of social benefit rights would imply a modification of EU rules in accordance
with the co-decision procedure. In this case, the European Parliament would be a major
obstacle, and there is no agreement for revision in the Council.
If such regressive scenarios should occur, the restructuring of the internal market as being
in goods and services only would bring the risk of a further collapse of legitimacy among
citizens of the more peripheral Member States. In addition, there is the opposite risk of the
EU surrendering to the trend to polarization and imposing the whole burden of absorbing
the asymmetric shock of the crisis onto the citizens of the economically weaker Member
States by requiring them to migrate elsewhere.
On the other hand, it might be possible to promote the continued and unwavering defence of the right of persons freely to circulate within the EU, refining and reinforcing longterm strategies for maximising the positive effects of mobility - especially that of young
people - in terms of cultural and economic dynamism, while remaining vigilant against,
40 Montenegro is conducting accession negotiations, while Serbia opened negotiations on 21 January
2014 and other Western Balkans countries will follow, not to speak of Turkey.
No. 5 • APRIL 2014
27
and reducing, the possible negative repercussions.
4.2. Governance implications of a more effective policy on mixed flows
The apparent convergence of EU Member States which led to the common asylum policy
based on the imposed paradigm of burden-sharing, as described above in section 1.3,
showed its limits in October 2013, in the wake of the tragic incidents in the waters off the
Italian island of Lampedusa, in which hundreds of human beings died trying to reach EU
soil.
The issue of a more effective protection system has returned dramatically to the forefront
in recent months, and a growing polarisation within Europe with respect to the governance of mixed flows divides Northern and Continental EU Member States from Southern
and South-Eastern EU Member States, “core countries” (in geographical terms) from countries situated along common external borders, especially maritime ones.
Faced with the lack of legal channels of entry and the absence of off-shore procedures to
ask for protection, the pressure on the irregular channels of entry, themselves limited in
number due to the effective closure of other routes, has increased.41 Although in merely
quantitative terms the volume of arrivals on the Southern Mediterranean coast is relatively
small, the arrivals coming, more silently, from land are especially sensitive and of a more
and more complex and mixed nature: economic migrants together with refugees, adults
and minors, women and children seeking better conditions of life, and victims of trafficking. Such diverse groups of people call for differentiated treatment, which seems to be as
necessary as it is difficult and expensive to carry out.
The crucial challenge ahead, which requires the combination of search and rescue activities with the fight against trafficking of human beings and the protection of vulnerable
categories of migrants, is clearly one which does not have an easy and wide-ranging
convergence of interests and political will between Member States. As such, on paper at
least, it calls for new strategic alliances among the “border states” by which the burden of
41 For the origins of this trend, see Ferruccio Pastore, Paola Monzini and Giuseppe Sciortino, “Schengen's
Soft Underbelly? Irregular Migration and Human Smuggling across Land and Sea Borders to Italy”, in International Migration, Vol. 44, No. 4 (October 2006), p. 95-119.
No. 5 • APRIL 2014
28
the management of such mixed flows is mainly borne. In practice, however, coalitions of
peripheral states aimed at obtaining more from the EU and other Member States in terms
of resources are hampered by the deep differentiation of migratory situations and, therefore, short-term interests, which makes any formal reinforced cooperation very unlikely.
The geography and geopolitics of irregular migration, and of mixed flows in particular, is
highly fragmented. Contrary to the situation a decade ago, when accessible sea routes
to the EU were still manifold, successful EU-wide and bilateral actions have effectively
curtailed a number of access routes, the most evident case being the crossing from West
Africa to the Canary Islands.42 In this changing context, the so-called Central Mediterranean route(s), with departure from between Western Egypt and Tunisia and arrival in Malta,
Calabria, Sicily or the Sicilian archipelago of the Pelagie Islands (Lampedusa and Linosa
being the main ones), stands out as the main if not only access channel. This de facto sets
apart Italy and Malta as actual destinations and as border states with practical (as opposed
to only theoretical) responsibilities for everyday management of mixed arrivals and for
search and rescue activities.
In such a context, the political viability and the prospects of success of a strategy aimed
at building reinforced cooperation between Member States sharing the same short-term
concerns are low. Therefore, any successful EU policy should be framed in a longer-term
perspective, based on a deeper understanding of interdependencies among Member
States. At present, the risk of a vicious circle in which limited solidarity calls for limited engagement in border control and protection activities (and vice versa) is concrete.
The logic behind the extraordinary effort made by Italy with the deployment of the Mare
Nostrum operation goes exactly in the opposite direction, namely that of investing more
in controls and protection in order to gain credibility and put pressure on Brussels and
other capitals, from which more solidarity is requested. It is evident, however, that such
an extraordinary effort can only be sustained for a limited period both politically and
economically speaking.
42 Ibidem.
No. 5 • APRIL 2014
29
A specifically worrying sign is the lack of political solidarity shown by Spain towards Italy:
the Spanish authorities have sent signals showing a lack of support for highly-demanding
initiatives such as Mare Nostrum, on the basis of the argument that this would represent
a pull factor: in other words, reducing the risk of shipwrecks and deaths at sea would de
facto create an incentive for migrants.
In the short- to medium-term, a more realistic - even though by no means smooth or
probable - scenario entails the launch of small bilateral or multilateral ad hoc cooperation projects among coastal or island states, inside or outside the framework of a Frontex
operation, aimed at pursuing specific and limited technical goals (e.g. developing new
surveillance technologies, or starting pilot projects in transit countries), including through
the use of the resources of the new Asylum, Migration and Integration Fund (AMIF). It is
clear, however, that such ad hoc micro-coalitions will not be decisive. More fundamental responses to the challenges ahead can only come from wider cooperation schemes,
which can only be based on a longer-term perspective and a deeper understanding of
interdependencies, including the negative backlashes of a denial of solidarity.
For all these reasons, the Italian presidency of the Council of the European Union in the
second half of 2014 could have a decisive role in better applying the principle of solidarity,
in rendering more effective both the Union’s reception policies and its external border
control measures, and in trying to build new coalitions with these aims.
The Italian presidency occurs at a moment of new agenda-setting in the Justice and
Home Affairs field destined to replace the Stockholm Plan that expires at the end of
2014,43 and will have a decisive role in ensuring a follow-up to the conclusions of the June
43 Published on 11 March 2014, the Commission communication entitled An open and secure Europe:
making it happen (COM(2014)154) refers to the integrated management of the external borders and calls
for the adoption of new rules on the mutual recognition of asylum decisions across Member States and
the development of a framework for the transfer of protection to reduce obstacles to movement within
the EU and to facilitate the transfer of protection-related benefits across internal borders. More concretely, promoting high standards of protection in countries of transit and origin and reducing the numbers
of people who make hazardous journeys across the Sahara, the Mediterranean and other routes in the
hope of reaching Europe should, in the Commission’s view, be stepped up as an integral part of the
EU’s external policies, inter alia through the reinforcement of Regional Protection Programmes (RPP) and
resettlement programmes.
No. 5 • APRIL 2014
30
2014 European Council, which will discuss the new work programme in matters of justice,
security, asylum and immigration. This responsibility can and must also be interpreted as
an opportunity, especially for a country that, from various points of view (as a custodian
of a delicate segment of the common external border, a recent destination for massive
migration flows, and a significant source of youth mobility), is directly affected by the EU’s
decisions (or a lack thereof) in this area.
At a stage at which several of Italy’s long-term interests coincide significantly with major
strategic lines of action espoused by the European institutions, and especially the Commission, some of the most prominent priorities to be proposed could include the pursuit
of efforts already under way towards ensuring more effective and sustainable European
Union and Member State external border controls. This could particularly concern southern maritime actions, and should be carried out with full respect for fundamental rights.
To that end, an exceptional and prolonged commitment to implementing the “Mediterraneo” Task Force recommendations (beyond the present emergency) needs to be made.44
The development of relocation procedures and joint processing schemes, together with
procedures to enable asylum-seekers to lodge an application outside the Union through
national embassies or consulates or EU delegations, as well as the creation of safe channels for legal entry into Europe, so called “humanitarian corridors”, are also concrete options which could be promoted.
The success of negotiations on these issues will largely depend on the capacity to frame
the need for a more effective policy on mixed flows not as a selfish request for financial
relief and material support from a minority of Member States, but as a condition for the
44 For an update of the Italian position on migration and Europe, see also: Italian Chamber of Deputies-Schengen Committee, Audizione del Ministro dell’interno, on.Angelino Alfano, nelle materie di competenza del Comitato, con particolare riferimento alle politiche in materia di immigrazione, 15 April 2014, http://
documenti.camera.it/leg17/resoconti/commissioni/stenografici/html/30/audiz2/audizione/2014/04/15/
indice_stenografico.0005.html; Chamber of Deputies, Informativa urgente del Governo sulle dichiarazioni
del Ministro dell’interno relative ad un ingente incremento del flusso di migranti e sulle misure che si intenda
adottare per farvi fronte, 16 April 2014, http://documenti.camera.it/leg17/resoconti/assemblea/html/
sed0213/stenografico.pdf; Guido Ruotolo, “Il ministro Alfano ‘L’Europa immobile aiuta la Le Pen’”, in La
Stampa, http://www.interno.gov.it/mininterno/export/sites/default/it/sezioni/sala_stampa/interview/
Interviste/2098_500_ministro/2014_04_17_La_Stampa.html_8783070.html.
No. 5 • APRIL 2014
31
effective management of such flows which cannot be achieved by a few Member States
acting alone.
4.3. EU policy on labour migration: stagnation or breakthrough?
A polarisation between Southern and Continental EU Member states has occurred also
with respect to priorities and interests on legal migration policies. As mentioned above,
the highly uneven impact of the economic crisis has contributed to bringing immigration
policies into different perspectives: the low-skilled labour migration needs of Southern
States (but not only them) have been strongly downsized due to national labour shortages, whereas some Northern EU countries are experiencing a growing need for high- and
medium-skilled labour migration.45
Given that, even at a time of greater convergence of interests around this issue, cooperation among EU member states led only to agreement on a limited and “piecemeal”
approach to legal migration, as described at section 2.2, a fully-fledged labour migration
policy is all the more unthinkable in the current economic situation.
In a policy cluster where progress is so gradual, slow and down-to-earth, and where
achievements can be considered as minimum standards or minimum common denominators for national legislation, no possible pioneers’ game changes or restarts, as for the
asylum policy field, are even thinkable in a short- to medium-term time frame.
As Article 79 TFEU already shows, and moreover given the current economic circumstances, it is clear that no agreement on a genuinely transformative and coordinated admission
policy, setting common and binding conditions for entry and residence in EU Member
States for work purposes, will be found soon.
The new multiannual programme setting out EU priorities for the area of justice, freedom
and security,46 which will take place in a stable legislative framework as no further Treaty
45 For an overview of the evolution of the governance of labour migration in the EU and its Member
States since the beginning of the crisis, see the country reports and working papers available in the website of the FIERI-led project LAB-MIG-GOV: http://www.labmiggov.eu.
46 European Commission, An open and secure Europe: making it happen (COM(2014)154), cit.
No. 5 • APRIL 2014
32
modifications are envisaged, does not contain any radically new proposals in this field.
On the other hand, in contrast to the field of mobility, no major sign of real disaggregation is looming on the horizon, although some regressive interventions can be envisaged:
these could imply for instance the re-nationalisation of specific aspects of migration policy as a way to protect Continental core Member States from possible future unsolicited and large-scale South-North transit flows. Preventive and “defensive” harmonization
trends could imply restrictions in Southern European admission policies, starting with a
stop on “easy-going” large-scale admissions or a block on any regularization of low-skilled
third-country nationals.
The more realistic scenario in the short- to medium-term is the accomplishment of the
Policy Plan on Legal Migration, including of course its implementation at national level,
in accordance with a down-to-earth and strictly functionalist approach. The latest step
taken in this direction is the adoption by the Council on 26 February 2014 of the Directive 2014/36/EU on seasonal workers. Although limited harmonization has been achieved,
minimum standards have been put in place as regards the rights of seasonal workers.
This can be seen as an important sign at a time of economic crisis when national debates
are rife with references to restricting migration and attacking the free movement of EU
workers, and where populism has made legal migration an even more toxic issue in the
public discourse.47 With this piece of legal migration legislation adopted at EU level, and
the Intra-Corporate Transferees Directive soon to follow, the policy plan on legal migration, as reshaped from the original ambitions of the early 2000s, could be considered to
have been achieved.
To conclude, however, a more dynamic scenario should also at least be mentioned, even
if it is conceivable only in a longer-term perspective. If the on-going trend towards greater
coordination of Member States’ economic policies continues, it will be difficult to exclude
areas such as taxation and labour market policies from such coordination. In such a context, the volume and composition of legal migration - which is unanimously deemed a key
factor in the future sustainability and competitiveness of European social and economic
47 Alex Lazarowicz, “A success story for the EU and seasonal workers’ rights without reinventing the
wheel”, in EPC Policy Briefs, 28 March 2014, http://www.epc.eu/pub_details.php?cat_id=3&pub_id=4309.
No. 5 • APRIL 2014
33
systems - might find itself at the core of a renewed and more strategic understanding of
the common European interest.
5. Concluding remarks
In this paper we have explored “core-noncore” relationships in the three inter-connected
policy fields of mobility, migration and asylum (MAM), which have evolved in autonomous ways, according to distinct logics but on the basis of some overarching structural
tendencies.
While the mobility field has had a communitarian core from its origin, a convergence in
migratory situations among Member States and a relative stability in the neighbourhood
have allowed for the gradual construction of a limited migration core, as well as of a rather
unstable asylum core.
We have then focused on some clearly emerging and largely inter-connected dynamics
of crisis within the cores of each of these policy fields, and identified the centrifugal forces
which risk jeopardising integration processes even beyond the boundaries of each specific policy field. The polarisation between Northern and Continental EU Member States on
the one hand and Southern and South-Eastern EU Member States on the other, between
“core countries” (in geographical terms) and countries situated along common external
(especially maritime) borders, associated with the de-structuring of the European neighbourhood, have undermined the very foundations of cooperation and solidarity in the
MAM fields. In particular, problems emerge especially in “grey areas” situated at the overlap of traditional policy fields: the management of mixed flows (an issue which stretches
across the migration and asylum policy clusters) and of mobility of “poor Europeans” (another thorny issue, situated at the boundary between the migration and mobility clusters).
The crisis of trust occurs at two levels: firstly, between electorates and institutions, as the
ineffective management of migration flows and poor mobile Europeans creates a sense
of lack of control over these rights-based (i.e. non-discretionary) forms of migration. Secondly, at a higher and at least equally worrying level, a crisis of trust is unfolding among
Member States, where the South-North gap overlaps with the core-periphery division.
No. 5 • APRIL 2014
34
The deficient and anachronistic design of the wider MAM policy fields contributes to explain the structural difficulties that the EU is finding in providing effective responses to
such issues.
We have finally tried to outline possible future scenarios, according to the different responses of the various actors to the tension between centripetal and centrifugal dynamics.
The mobility of EU citizens is already a fully-integrated field of policy at the EU level, meaning that the maintenance of such an acquis is the most optimistic scenario which can
currently be envisaged. However distant and legally problematic, options of opt-out from
the freedom of movement, whether or not associated with threats of secession from the
EU, undermine such a conservative perspective.
The governance of mixed flows is the probably the most demanding short-term challenge facing the European Union in the MAM policy fields. The risk of paralysis and lack of
action, which would mean a de facto betrayal of promises of solidarity and burden-sharing as regards the asylum and protection system, stands out as a likely scenario as, at least
in the short term, formal (or even informal but stable) reinforced cooperation among peripheral Member States aimed at upgrading the common asylum policy seems unlikely to
occur. Micro-coalitions with possible European financial support could improve concrete
situations and allow a marginally more efficient control and protection system, but the
risks of mutual free-riding and retaliatory behaviour could also lead to an extreme scenario of exit from Schengen on the part of some Member States.
As far as the governance of labour migration is concerned, at one extreme of the spectrum of possible scenarios lies the stagnation of the current piecemeal approach, whereby the maintenance of a de facto intergovernmental method to decide on legal migration
flows and labour migration policies constitutes the most likely scenario.
Although no regressive signs nor any major step forward are envisageable in the short
term, in a longer perspective, a complete overhaul of European economic governance
would necessarily include labour migration. In fact, although in extraordinary circum-
No. 5 • APRIL 2014
35
stances, this has been happening already: governments operating under the control of
the “troika” have certainly not maintained full control of their domestic labour migration
policies, which is also true of any other policy field structurally affecting the domestic
economic outlook.
A jump ahead from the muddling through of the current migration governance could be
brought about in the future by a substantial breakthrough in the economic governance
of the EU or at least of the Eurozone. How this could happen, through which paths and
with which outcomes: addressing these questions would require a visionary effort which
clearly goes beyond the scope of this paper.
No. 5 • APRIL 2014
36
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Imagining Europe
As the unprecedented financial crisis and ensuing economic recession push Europe to the
brink, a critical question arises as to what the foreseeable trajectories for EU governance
are in the decades ahead. The crisis has already accelerated EU policy and institutional
evolution in key policy areas, but the integration project remains torn apart by centrifugal
political and economic forces. The “Imagining Europe” series aims at delineating what
kind of governance models the EU could head towards, and which of these models is
best suited for the purpose of a more united, effective and legitimate EU. In particular,
the research sheds light on the degree and nature of integration at the “core” of Europe
and the relationship of that core with those member states (current and future) which opt
to remain outside it. It does so by exploring five policy areas: fiscal and monetary policy,
infrastructure and communications, security and defence, migration and citizenship, and
energy and environment.
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